EXHIBIT 10.9
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of November 17, 1998 (this "Amendment"),
between TrizecHahn Centers Inc., a California corporation ("THCI"), and The
Xxxxx Company, a Maryland corporation ("Xxxxx"), and Westfield America, Inc., a
Missouri corporation ("Westfield" and, together with Xxxxx, the "Acquirors").
W I T N E S S E T H:
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WHEREAS, THCI, Xxxxx and Westfield are parties to an Asset Purchase
Agreement, dated as of April 6, 1998, as amended by Amendment No. 1 dated as of
July 31, 1998, by the letter agreement dated as of July 31, 1998, by Amendment
No. 2 dated as of August 31, 1998, by Amendment No. 3 dated as of September 23,
1998, by Amendment No. 4 dated as of September 25, 1998, by Amendment No. 5
dated as of October 7, 1998, by Amendment No. 6 dated as of October 22, 1998 and
by Amendment No. 7 dated as of October 30, 1998 (the "Asset Purchase Agreement";
terms defined in the Asset Purchase Agreement and not otherwise defined herein
being used herein as therein defined);
WHEREAS, THCI, Xxxxx and Westfield desire to amend the Asset Purchase
Agreement as set forth in this Amendment; and
WHEREAS, pursuant to Section 12.09 of the Asset Purchase Agreement,
the Asset Purchase Agreement may be amended by the parties hereto.
NOW THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
SECTION 1.01 Los Cerritos Mall.
(a) Pursuant to the terms of the Asset Purchase Agreement and
that certain Agreement for Purchase and Sale of Partnership Interest (the
"LC Purchase Agreement"), dated July 31, 1998, between Los Cerritos LLC (a
wholly owned subsidiary of Westfield America Limited Partnership) and THCI,
at the Applicable Closing for Los Cerritos, THCI was obligated to purchase
the partnership interest in H and H-Cerritos held by Los Cerritos LLC, and
the Acquirors were obligated to purchase from THCI the Los Cerritos
Property Assets. In lieu of the foregoing, on the date hereof, the
following transactions have occurred in the following order:
(i) H and H-Cerritos has redeemed the partnership interest in H
and H-Cerritos held by Los Cerritos LLC for a fifty percent (50%) TC
Interest in the Los Cerritos Property Assets;
(ii) Los Cerritos LLC, as tenant-in-common, has assumed 50% of
the Los Cerritos Existing Debt;
(iii) Los Cerritos LLC has purchased from H and H-Cerritos the
remaining 50% TC Interest held by H and H-Cerritos for an Adjusted
Allocated Purchase Price equal to $73,093,125.00 (such Adjusted Allocated
Price for such TC Interest being determined in accordance with the Asset
Purchase Agreement as if such TC interest were a Partnership Interest); and
(iv) THCI has paid (or will pay) the real property transfer
taxes, if any, assessed in connection with the transfers described in
clauses (i) through (iii) above.
(b) Except as expressly provides herein, all of the terms of the
Asset Purchase Agreement (including Section 9 and Section 5.11(a)(iv) of the
Asset Purchase Agreement) shall apply with respect to the Los Cerritos TC
Interests transferred by H and H-Cerritos to Los Cerritos LLC on the date
hereof.
(c) THCI and Los Cerritos LLC hereby terminate the LC Purchase
Agreement effective as of the date hereof and agree that neither party thereto
shall have any further obligation or liability thereunder.
(d) THCI acknowledges that, for purposes of Section 9.02 of the Asset
Purchase Agreement and subject to all limitations contained therein with respect
to the Los Cerritos Property Assets, the term "Losses" may include Losses
suffered by Westfield as a result of any breach of any representations or
warranties made by Westfield to The Macerich Company ("Macerich") in connection
with a sale of the Los Cerritos Property Assets by Westfield to Macerich which
are based on representations or warranties made by THCI to Westfield under the
Asset Purchase Agreement, but only to the extent, if any, that Westfield would
have been entitled to recover from THCI under said Section 9.02 had Westfield
not sold the Los Cerritos Property Assets to Macerich.
(e) Reference is made to that certain Shopping Center Lease (the "UA
Lease"), dated July 19, 1996, by and between United Artists Theater Circuit,
Inc. ("UA") and H and H-Cerritos. Westfield acknowledges that for the purpose of
calculating the base rent and tenant allowance under the UA Lease, (i) UA has
claimed that the premises under the UA Lease (the "Premises") contains 55,078
square feet, and (ii) H and H-Cerritos has claimed that the Premises contains
56,420 square feet. In connection with the assumption by Los Cerritos LLC of the
obligation to pay the remaining tenant allowance under the UA Lease, the
Adjusted Allocated Purchase Price for the TC Interest in the Los Cerritos
Property Assets includes a credit of $702,000.00, reflecting the unpaid tenant
allowance based upon the larger square footage. If Los Cerritos LLC agrees with
UA that
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the Premises is less than 56,420 square feet, Westfield shall cause Los
Cerritos LLC to pay to H and H-Cerritos one-half of the product of the
required tenant allowance per square foot under the UA Lease times the
difference between 56,420 and the square footage of the Premises agreed to
by Los Cerritos LLC and UA.
(f) THCI and Westfield acknowledge that the balance of the
account held by THCI for the benefit of H and H-Cerritos with respect to
the period prior to July 31, 1998, and the balance of the account held by
the Management Company for the benefit of H and H-Cerritos with respect to
the period from and after July 31, 1998, are to be distributed 50% to Los
Cerritos LLC and 50% to THCI on the Applicable Closing Date for the TC
Interest in the Los Cerritos Property Assets.
SECTION 1.02 Xxxxxx Plaza CAM Claim. Section 1.06(b) of the
Amendment No. 7 to the Asset Purchase Agreement is deleted in its entirety and
replaced with the following:
"(b) If THCI has not resolved such claim to Nordstrom's and
Westfield's reasonable satisfaction on or before November 30, 1998, THCI
shall pay to Westfield the amount of such claim less the sum of (i) any
portion of such claim which THCI has paid or caused to be paid, and (ii)
any portion of such claim which THCI demonstrates to Westfield's reasonable
satisfaction as being without merit. Westfield agrees to forthwith pay to
Nordstrom, Inc. the full amount of such payment received by Westfield.
Nothing contained in this Section 1.02 shall limit THCI's responsibility
for the Nordstrom's claim or THCI's indemnification obligations with
respect thereto pursuant to Section 9.02(a)(iv) of the Agreement."
SECTION 1.03 Section 338(h)(10) Election.
(a) Notwithstanding anything contained in the Asset Purchase
Agreement, Westfield and THCI shall jointly make a deemed asset sale
election described under Internal Revenue Code Section 338(h)(10) (the
"Section 338(h)(10) Election") and shall make all corresponding or similar
elections under applicable state or local law with respect to the
Management Company in connection with the qualified stock purchase of the
stock of the Management Company by Westfield under the Asset Purchase
Agreement (collectively, "Elections"). Westfield and THCI shall file all
such Elections on a timely basis and comply with all rules and regulations
applicable to such Elections. Westfield and THCI shall cooperate with each
other to take all actions necessary and appropriate (including filing such
forms, returns, elections, schedules and documents on a joint or separate
basis as may be required) to effect and preserve timely Elections in
accordance with applicable Treasury Regulations under Section 338 and
comparable state or local laws.
(b) For the purpose of making the Section 338(h)(10) Election,
THCI shall in good faith compute and allocate the "modified aggregate
deemed sales price" among the assets of the Management Company in
accordance with the provisions of Section 338 and the Treasury Regulations
thereunder (the "Allocation"), and shall deliver
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to Westfield the Allocation with reasonable diligence after the date
hereof. Each allocation contained in the Allocation shall be subject to
Westfield's reasonable approval; provided that THCI shall in no event be
obligated to change any allocation in any manner which is adverse to THCI.
THCI shall calculate gain or loss, if any, resulting from the Elections and
Westfield shall calculate tax basis in the Management Company's assets in a
manner consistent with the Allocation in any tax return, schedule, estimate
or otherwise. Westfield will not make an election under Section 338(g) of
the Code with respect to the sale of the stock of the Management Company
hereunder except in connection with the Section 338(h)(10) Election that
will be made by THCI and Westfield jointly.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01 Authority; Effect on Asset Purchase Agreement.
(a) THCI hereby represents as follows:
(i) THCI has all necessary corporate power and authority
to execute and deliver this Amendment, to perform its obligations
under the Asset Purchase Agreement (as amended by this Amendment) and
to consummate the transactions contemplated by the Asset Purchase
Agreement (as amended by this Amendment)
(ii) The execution and delivery of this Amendment by THCI
and the consummation by THCI of the transactions contemplated by the
Asset Purchase Agreement (as amended by this Amendment) have been duly
and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of THCI are necessary to authorize
this Amendment or to consummate the transactions contemplated by the
Asset Purchase Agreement (as amended by this Amendment).
(iii) This Amendment has been duly and validly executed and
delivered by THCI and, assuming the due authorization, execution and
delivery by Xxxxx and Westfield, the Asset Purchase Agreement (as
amended by this Amendment) constitutes the legal, valid and binding
obligation of THCI, enforceable against THCI in accordance with its
terms (except Insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, or principles governing the
availability of equitable remedies).
(b) Xxxxx and Westfield each, severally but not jointly, hereby
represents as follows:
(i) Such Acquiror has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its obligations
under the
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Asset Purchase Agreement (as amended by this Amendment) and to consummate
the transactions contemplated by the Asset Purchase Agreement (as amended
by this Amendment).
(ii) The execution and delivery of this Amendment by such
Acquiror and the consummation by them of the transactions contemplated by
the Asset Purchase Agreement (as amended by this Amendment) have been duly
and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of such Acquiror is are necessary to
authorize this Amendment or to consummate the transactions contemplated by
the Asset Purchase Agreement (as amended by this Amendment).
(iii) This Amendment has been duly and validly executed and
delivered by such Acquiror and, assuming the due authorization, execution
and delivery by THCI, and Asset Purchase Agreement (as amended by this
Amendment) constitutes the legal, valid and binding obligation of such
Acquiror, enforceable against such Acquiror in accordance with its terms
(except insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, or principles governing the availability of equitable
remedies).
(c) Except as amended hereby, the provisions of the Asset
Purchase Agreement are and shall remain in full force and effect.
SECTION 2.02 Counterparts. This Amendment may be executed in two or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment.
[BALANCE OF THE PAGE INTENTIONALLY LEFT BLANK]
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SECTION 2.03 Governing Laws. This Amendment shall be governed in
the same manner as provided in Section 12.10 of the Asset Purchase Agreement.
IN WITNESS WHEREOF, THCI, Xxxxx and Westfield have caused this
Amendment to be executed as of the date first written above by their respective
officers hereunto duly authorized.
TRIZECHAHN CENTERS INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
THE XXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
WESTFIELD AMERICA, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Secretary
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